Snyder v. Phelps

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By Anthony Renzo, Professor of Law, Vermont Law School. Professor Renzo specializes in constitutional law and litigation.

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In an opinion framed in terms of the majestic First Amendment principles of informed decision-making and debate on matters of public concern, the Supreme Court in Snyder v. Phelps ruled that the First Amendment protects picketing that targeted the funeral of Lance Corporal Matthew Snyder, killed in action in Iraq. The pickets were members of the Westboro Baptist Church, who chose Matthew's funeral to generate media attention for their message that God killed Matthew Snyder "in shame, not honor" because his parents and America tolerate homosexuality, divorce, and adultery. Under First Amendment cover, the Court ruled that this was speech on matters of public concern and was immune from state tort liability, however personally painful to the family of the deceased.

In 2007, Westboro's founder, Fred Phelps, and several members of his family traveled from Kansas to Maryland to picket Matthew's funeral. Their signs carried their message: "God Hates Fags," "Thank God for Dead Soldiers," "You're Going to Hell," and "God Hates You." Westboro targeted Matthew Snyder, a private figure whose views on these issues were unknown, for the purpose of generating a national audience for their message. In the process Westboro hijacked the narrative that would accompany the Snyder family's burial of their son. Unfortunately, the theft of Matthew's memory by Westboro did not end with the publicity generated by the funeral picketing. Following the funeral, Westboro posted an online account of the meaning of their funeral picket, a self-described "epic" entitled "The Burden of Marine Lance Cpl. Matthew A. Snyder. The Visit of Westboro Baptist Church to Help the Inhabitants Connect the Dots!" In this "epic," interspersed among lengthy Bible quotations, Westboro denounced Matthew and his parents by name:

"Mr. and Mrs. Snyder ... raised him (Matthew) for the devil.

"Albert and Julie RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery. They taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity...They also, in supporting Catholicism, taught Matthew to be an idolater."

Albert Snyder, Matthew's father, filed a lawsuit for damages against Westboro and the Phelps, claiming that this campaign to demonize the Snyders during a time of grief and vulnerability inflicted emotional distress and invaded their privacy. A federal district court jury found the defendants liable for three torts: intentional infliction of emotional distress (IIED), intrusion upon seclusion, and civil conspiracy, awarding Snyder $2.9 million in compensatory damages and $8 million in punitive damages. The trial court reduced the punitive damages to $2.1 million, but otherwise denied Westboro's post-trial motions.

Westboro appealed to the Fourth Circuit, which reversed. The circuit court concluded that Westboro's speech, including the Web site epic, was protected by the First Amendment as speech on matters of public concern. A majority of the three judge appeals' court panel ruled that Westboro's personal attacks on the Snyders were made in the context of expressing its religious opinions on controversial issues of broad public interest that could not reasonably be interpreted as expressing verifiable facts about Albert Snyder. As such, according to the Fourth Circuit, this public-concern speech could not be penalized by any form of state tort liability.

In an opinion by Chief Justice Roberts, an eight Justice majority of the Supreme Court affirmed the Fourth Circuit, but only after limiting the scope of its ruling to the funeral picketing. The Court refused to consider the online epic, claiming that Snyder had failed to include the epic within the scope of his petition for certiorari. Dissenting Justice Alito referred to the Court's refusal to consider the epic as "strange," pointing out that the epic was "not a distinct claim but a piece of evidence that the jury considered in imposing liability." Agreeing with the Fourth Circuit that the epic could not be divorced from the general context of the funeral message, Alito chastised the Court for not making an "independent examination of the whole record" as required when appellate courts review cases raising First Amendment issues.

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By Jamie Raskin, a professor of constitutional law and the First Amendment at American University's Washington College of Law and a Democratic State Senator in Maryland serving on the Senate Judicial Proceedings Committee.

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First Amendment principles are best tested at the extremes, which is why the history of free speech jurisprudence is filled with passionate extremists of all stripes: zealots, dissidents, visionary conscientious objectors, and fanatical bigots. Where would the freedom of expression be without reviled anti-war socialist and anarchist agitators, Klan propagandists and weekend fascists, recalcitrant Jehovah's Witnesses, civilly disobedient civil rights protesters, anti-abortion fanatics, flag-burners from the Revolutionary Communist Youth Brigade, narcissistic capitalist pornographers, and middle-school Quaker peace activists who refuse to take off their black armbands?

Into this schizophrenic pantheon of racist sinners, ideological firebrands and revolutionary saints strides now the appalling Reverend Fred Phelps, whose ideologically inbred Westboro Baptist Church has made it a hobby to travel all over America picketing at military funerals and broadcasting a weird mix of homophobia and anti-Catholic, anti-Jewish and anti-American propaganda. The signs carried by forlorn members of the Phelps family say: "Fags Doom Nations," "God Hates the USA/Thank God for 9/11," "Pope in Hell," "Fag Troops," "Semper Fi Fags," "Thank God for Dead Soldiers," "Priests Rape Boys," and "God Hates Obama."

It's the special effect of maniacs like the Rev. Phelps to infuriate everyone in his path, and his only real contribution to public progress may be to have antagonized both the gay and lesbian community seeking to overturn the military's "don't ask, don't tell" policy and right-wing Senators who have traditionally thought there is no place for gay people in the armed services. Perhaps the evidence of such rank religiously based homophobia will encourage these conservatives to rethink their views.

In any event, Snyder v. Phelps provides an opportunity to restate some First Amendment essentials. Obviously people have a right to say racist, sexist, unpatriotic, stupid and homophobic things; moreover, they have a right to say them in public in a way that offends other people and gets them mad. As Justice William Brennan put it in Texas v. Johnson (1989) the flag-burning case, "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

This principle applies regardless of whether the state would criminalize such speech directly or punish it through a civil tort action, which is what happened in this case when a jury awarded the family of Marine Matthew Snyder, who was killed in the line of duty, nearly $11 million in damages against Phelps for intentional infliction of emotional distress and invasion of privacy relating to his "God hates fags" picket at Snyder's funeral in Westminster, Maryland.

The Supreme Court has repeatedly found that the First Amendment is offended when courts award civil damages against people because of their speech. That is the story of New York Times v. Sullivan (1964), where the Court stopped the Alabama judiciary from using libel suits to stifle criticism of official racism. And it is the story of Hustler v. Falwell (1988), in which the Court denied fundamentalist preacher Jerry Falwell's tort damages against Larry Flynt and Hustler magazine for intentional infliction of emotional distress when the magazine published a truly outrageous pornographic cartoon parody starring Falwell and his mother. I know people who think that there must be a legal cause of action every time they are offended, but they should recall what Lenny Bruce said: "My parents came to America to be offensive!"